Plaintiff brought action against defendants in personal injury action arising from motor vehicle collision. Plaintiff commenced two statements of claim on different dates for same action. Plaintiff commenced initial action in September 2013 and second action in October, 2013. Defendants brought summary judgment motion seeking to dismiss action on basis that circumstances of two actions were such that October action was statute barred under Limitations Act. Paintiff resisted motion and brought cross motion seeking leave to amend statement of claim to plead discoverability under sections 4 and 5 of Limitations Act within context of provisions of Section 267.5(5) of Insurance Act. Defendants’ motion for summary judgment dismissed; plaintiff’s motion to amend statement of claim to plead discoverability allowed. Limitation period did not begin to run until plaintiff discovered that she had sustained threshold injuries. This occurred on May 5, 2014, when she received prognosis from Dr. Getahun. Issue of discoverability remained genuine issue for trial. It was not in interest of justice for additional powers under Rule 20.04(2.1) to be utilized. In fact, under these circumstances it will constitute irresponsible use of judicial resources.
Sanclemente v. Irwin (2017), 2017 CarswellOnt 5229, 2017 ONSC 2249, Barnes J. (Ont. S.C.J.).